It's the Constitution, Stupid

You know, that old piece of paper the Bush administration shredded. Why is no one in Denver talking about it?

Pat Buchanan is right. There, I said it. Shoot me. Pat Buchanan and I are both maddeningly frustrated by the Democrats' inability to deliver red meat to their base, even when President Bush has spent eight years hunting, shooting, and filleting that red meat himself. Appearing last night on MSNBC, Buchanan, after arguing that Bill Clinton had utterly failed to rally the crowd about real issues, ended up hollering, "Has anybody heard the word Guantanamo mentioned this entire convention?" I've been kind of wondering the same thing.

Dahlia Lithwick writes about the courts and the law for Slate and hosts the podcast Amicus.

Now, Buchanan was wrong in the particulars. John Kerry, in what was probably the finest speech of the week, actually mentioned the prison camp shortly after Clinton failed to do so. Kerry promised the crowd that "President Obama and Vice President Biden will shut down Guantanamo; respect the Constitution; and make clear, once and for all, the United States of America does not torture—not now, not ever." They roared. But it wasn't Buchanan's fault he'd missed it. Almost all the networks had cut away from what may have been the convention's only prime-time mention of the zenith of Bush administration lawlessness.

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Bill Clinton is a lawyer. Hillary Clinton is a lawyer. Rep. Artur Davis is a lawyer. Michelle Obama is a lawyer. Chuck Schumer is a lawyer. Joe Biden is a lawyer. Ted Kennedy is a lawyer. I have heard virtually all of these people speak poignantly and passionately about the Constitution, the rule of law, and the outrages visited upon the Bill of Rights over the past eight years. Biden was prescient about the legal implications of what had been done at Abu Ghraib. Rep. Davis has been devastating on Guantanamo and torture on the House judiciary committee. When Ted Kennedy gets started on warrantless wiretapping and national-security letters and signing statements, there is nobody better. These are America's constitutional poet laureates. And yet Buchanan is right that almost every prime-time convention speaker has behaved as though President Bush's greatest crimes of the past eight years have involved lost jobs and climbing oil prices. On the streets of Denver, they are protesting Guantanamo, wiretapping, and water-boarding. But inside the hall, you'd think it was just another recession year.

Now maybe I just need to get out more. Maybe I live in a teensy little rarefied bubble, in which a handful of constitutional law professors, tetchy libertarians, and paranoid bloggers have been tearing their eyebrows out for the past seven years over the president's use of the "war on terror" to run his tanks over great swaths of the Constitution and much of the Bill of Rights. Maybe I overestimate American concern that their president likes to eavesdrop on their phone calls and root through their library records. Yet Jane Mayer's book The Dark Side is on the best-seller list. Sixty-one percent of Americans oppose warrantless wiretapping. And both presidential candidates have recognized Guantanamo for the international disaster it is. So clearly somebody cares about the loss of civil liberties in America. It's just that nobody wants to talk about it.

It may bear repeating that the Constitution matters. America was born of a struggle for freedom from tyranny, not lower gas prices. Of course the public should be upset about jobs migrating overseas and the rising price of health insurance. But the implication from Denver that secret government searches and indefinite detainment of U.S. citizens are minor annoyances—ranking somewhere between the neighbor's overgrown hedge and tooth decay—is insane. Have a listen to the late great Bill Hicks on George H.W. Bush. (But maybe not with your children.) He evinced more outrage toward Bush senior in 1992 over the first Iraq invasion than anyone at the Democratic Convention has managed to muster over secret renditions and water-boarding in 2008.

And it's not simply, as Pat Buchanan chortles, that the Democrats can't tell the difference between red meat and boiled tofu. It's not even, as Glenn Greenwald points out today, that if Democrats cannot pillory the GOP with the truth about Bush's lawlessness, we are even stupider at elections than anyone previously suspected. The real tragedy of the silence from Denver on the Constitution is that it reinforces the most pernicious lie of the past eight years: that the rule of law is a luxury, not a necessity. Time and again when called to explain the decision to allow torture, strip detainees of the right to habeas corpus, or spy on innocent Americans, Bush administration officials have hit us with the great gooey lie that we cannot afford such niceties in dangerous times. It's a colossal hoax. The Constitution was written for dangerous times. But to hear them speak in Denver, we can't afford to talk about the Constitution in economic downturns, either.

One speaker after another has insisted this week that America is at a crossroads, a turning point, and then hoped we'd get the reference. Each has declined to explain that the turning point here is a moral one. Now I am not one of those people who's been forced to choose between gas and food for my kids, and I don't want to diminish the disastrousness of the economy, the war, or Bush foreign policy as detailed by this week's convention speakers. But I think that when Americans ask themselves where the country went off the rails over the past eight years, it's not just the mortgage crisis or the war they're thinking about. I think the great majority of Americans know that a country once guided by exalted principles is now tainted by cruel ones. I think they know this president has—under the cover of war and secrecy—authorized unconscionable acts that have not made us safer and have likely made us less so. I think they know what Guantanamo Bay means to the rest of the civilized world. And I believe Americans care about those things a lot.

Barack Obama taught constitutional law. Maybe he will surprise us tonight with a detailed rundown of what has happened to that document in recent years and the ways in which John McCain has either actively contributed to that process or sat by in silence as it happened. The great tragedy of the Bush administration was that it operated for years as though the Constitution was something nobody really cares about. The great crime of Denver may be that Democrats feel the same way.